Citation Nr: 1541745
Decision Date: 09/28/15 Archive Date: 10/05/15
DOCKET NO. 12-07 881 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for left ear hearing loss.
2. Whether there was clear and unmistakable error (CUE) in a July 2009 rating decision that denied entitlement to service connection for a low back condition.
3. Entitlement to service connection for tinnitus.
4. Entitlement to an initial rating in excess of 30 percent for adjustment disorder with depressed mood.
5. Entitlement to service connection for sleep apnea.
6. Entitlement to service connection for migraine headache disorder, to include as secondary to adjustment disorder with depressed mood.
7. Entitlement to service connection for a right ankle disorder, to include as secondary to amputation of right 5th digit at proximal interphalangeal (PIP) joint.
REPRESENTATION
Veteran represented by: Charles D. Romo, Attorney-at-Law
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J.N. Moats, Counsel
INTRODUCTION
The Veteran served on active duty from July 2005 to April 2009.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009, March 2010, and June 2011 rating decisions issued by the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. In the September 2009 rating decision, the RO denied service connection for left ear hearing loss and tinnitus. In the March 2010 rating decision, the RO awarded service connection for adjustment disorder with depressed mood and assigned an initial 30 percent disability rating, and denied service connection for sleep apnea. The RO denied the remaining issues on appeal in the June 2011 rating decision. The Board notes that, although jurisdiction is currently with the St. Petersburg RO, the Veteran recently moved to Ohio in June 2015.
In July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is associated with the record. The record was held open for 60 days until September 7, 2015 to allow the Veteran to submit additional evidence. However, to date, no additional evidence has been received.
As a final preliminary matter, the Board notes that this appeal was processed using the paperless, electronic Virtual VA and Veterans Benefits Management System (VBMS) claims processing systems.
The issues of entitlement to an initial rating in excess of 30 percent for adjustment disorder with depressed mood and entitlement to service connection for sleep apnea, migraine headache disorder, and a right ankle disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Prior to the promulgation of a decision in the appeal, at the July 2015 Board hearing, the Veteran withdrew his appeal pertaining to the issue of entitlement to service connection for left ear hearing loss.
2. In a July 2009 rating decision, the RO denied the Veteran's claim for service connection for a low back condition; the Veteran did not submit a notice of disagreement and new and material evidence was not received within one year.
3. The July 2009 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome regarding the claim of entitlement to service connection for low back condition.
4. The Veteran has credibly asserted that he began experiencing tinnitus during service, and that it has continued to the present.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a substantive appeal by the Veteran pertaining to the issue of entitlement to service connection for left ear hearing loss have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015).
2. The July 2009 rating decision, which denied service connection for a low back condition, is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015).
3. The July 2009 rating decision, which denied the Veteran's claim of entitlement to service connection for a low back condition, was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. §§ 3.105(a), 20.1403 (2015).
4. The criteria for a grant of service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Withdrawn Claim for Left Ear Hearing Loss
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on record during a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204.
At the July 2015 Board hearing, the Veteran withdrew his appeal as to the issue of entitlement to service connection for left ear hearing loss. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Hence, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed.
II. Veterans Claims Assistance Act of 2000 (VCAA)
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015).
However, the VCAA is not applicable to the Veteran's claim of CUE in the July 2009 rating decision as a matter of law. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect).
Moreover, as the Board's decision to grant service connection for tinnitus herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the VCAA and the implementing regulations with respect to this issue.
III. CUE Claim for Low Back Condition
The Veteran contends that there was clear and unmistakable error in a July 2009 rating decision that denied service connection for a low back condition. Following the issuance of the decision and notification of his appellate rights the same month, the Veteran did not initiate an appeal from this determination with respect to the low back condition. Moreover, new and material evidence was not received within one year of this determination. See 38 C.F.R. § 3.156(b). In this regard, the Board acknowledges that the Veteran did seek VA treatment during this one year period. However, as these records only continue to show complaints of back pain and not a diagnosis of a low back disorder or nexus to service, they are not considered new and material as they are redundant of the evidence of record at the time of the July 2009 rating decision. In sum, based on the above, the July 2009 rating decision is considered final with respect to this matter. See 38 U.S.C.A. § 7105(c).
Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993).
Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43.
Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k).
The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination:
(1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied;
(2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and
(3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14.
To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger.
The relevant laws and regulations in effect in July 2009 with respect to award of service connection are essentially unchanged from those in effect at present. Specifically, applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
At the Board hearing and in statements of record, the Veteran has essentially asserted that there was CUE in the July 2009 decision because the RO did not have the correct facts before it at the time of decision. In other words, the Veteran has claimed that the RO did not accurately consider all of the evidence of record at the time of issuance of the rating decision in July 2009. Specifically, the Veteran claims that the RO did not adequately contemplate the history of recurrent back pain reported on the Veteran's December 2008 Report of Medical History. The Veteran has also asserted that the RO did not consider the evidence showing a diagnosis of a low back disorder, specifically June 2009 x-rays showing rotoscoliosis of the lumbar spine and possible degenerative disc disease at L4-5.
The pertinent evidence in the claims file submitted in association with the July 2009 rating decision consisted of service treatment and personnel records, the Veteran's May 2009 application for compensation, lay statements from the Veteran, VA treatment records dated in June 2009, and a June 2009 VA examination report. Service treatment records were silent with respect to any diagnosis of a low back disorder. However, in his December 2008 Report of Medical History, the Veteran reported recurrent back pain or any other back problem due to lifting heavy objects. Nevertheless, a December 2008 statement showed that the Veteran did not have any medical condition that rendered him unfit and warranted disability evaluation system processing. A June 2009 VA treatment record showed complaints of low back pain, but no further diagnosis was provided.
The June 2009 VA examination report showed that the Veteran reported low back pain. At such time, he asserted that he experienced low back pain due to lifting heavy objects while in service. The examiner observed that service treatment records were silent for low back symptoms until the separation examination in December 2008. A June 2009 x-ray of the lumbar spine showed rotoscoliosis of the lumbar spine and possible degenerative disc disease at L4-5. However, after examining the Veteran and reviewing the claims file, the examiner determined that it was a normal orthopedic examination of the lumbar spine.
In the July 2009 rating decision, the RO denied service connection for the Veteran's low back condition. The RO observed that service treatment records failed to show chronic complaints, treatment, or diagnosis of a low back disability. The RO further acknowledged that VA treatment records and VA examination results noted a history of occasional low back pain. However, on physical examination, range of motion testing was completely normal. The RO also indicated that x-ray findings were unremarkable, and reported that the VA examiner opined that the examination of the lumbar spine was normal and a chronic disability was not diagnosed. Thus, as there was no current diagnosis, the RO denied service connection, finding that this condition was neither occurred in nor caused by service.
In sum, while there was x-ray evidence of rotoscoliosis and possible degenerative disc disease, based on clinical findings, the RO determined that there was no current diagnosis of a low back condition. Given the lack of clinical findings on VA examination, the VA examiner's determination that the Veteran's lumbar spine was normal, and any diagnosis of a chronic disability in service, the Board finds that the RO did not err in such a way that would compel the conclusion, to which reasonable minds could not differ, that the results would have been manifestly different but for any error. Rather, the RO weighed the relevant evidence, discussed such evidence, and determined that service connection was not warranted.
Accordingly, based on the evidence of record, the Board is satisfied that the RO decision was a fair exercise in judgment. Although the Veteran contends that the evidence did show a chronic disability, specifically as demonstrated by the June 2009 x-ray, the Board cannot agree that CUE was committed. In this case, the RO adjudicator evaluated the evidence of record and, based on the lack of findings on clinical examination and the VA examiner's determination that the Veteran's lumbar spine was normal, determined that the Veteran did not suffer from a chronic low back disorder and, in turn, service connection was not warranted. The Board observes that judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. A disagreement with how a prior adjudication evaluated the facts does not establish CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995); Russell, supra. Additionally, although the RO indicated that the X-ray findings were unremarkable, the mere misinterpretation of facts does not constitute CUE. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991).
Likewise, even though the December 2008 in-service Report of Medical History did document recurrent back pain, the RO was not inaccurate in finding that service treatment records failed to show chronic complaints, treatment, or diagnosis of a low back disability, given that there was only one instance of claimed back pain, which arguably would not be considered "chronic" and, again, there was definitively no treatment or diagnosis. Again, the VA examiner was also aware of the one instance of back pain documented on the medical history. In sum, based on the evidence at the time, there was no CUE. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Wilson v. West, 11 Vet. App. 383, 386 (1998)(a determination that there is CUE must be based on the record and law that existed at the time of the prior adjudication in question).
Furthermore, even if the RO had acknowledged the single report of back pain in December 2008 and the findings on the June 2009 x-ray as evidence of an in-service event and a current disability, respectively, there remained no link, or nexus, between such current back disability and the Veteran's military service at the time of the July 2009 rating decision. Additionally, there was no definitive diagnosis of a chronic disease, such as arthritis, that would warrant presumptive service connection as the June 2009 x-ray only revealed possible degenerative disc disease at L4-5. In this vein, to the extent that it may be argued that the Veteran should have been afforded another VA examination or the RO should have obtained an etiological opinion addressing such matter, the Board calls attention to Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002), in which the United States Court of Appeals for the Federal Circuit emphasized that a purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" so as to vitiate the finality of a prior, final decision. In sum, the Court has held that the failure to fulfill the duty to assist does not constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). As such, in the instant case, the failure to provide the Veteran another VA examination or obtain an opinion also does not constitute CUE.
In the course of the current appeal, the Veteran has also submitted additional statements supporting his current contentions that he had a back disorder at the time of the prior July 2009 decision. The Veteran was also afforded another VA examination in May 2011 that diagnosed L4-5 degenerative disk disease based on the June 2009 x-ray. Moreover, at the Board hearing, the Veteran also testified as to his continuing problems with low back. Nevertheless, the additional evidence, including the May 2011 VA examination and Board hearing testimony, was not of record at the time of the July 2009 rating decision and, thus, cannot be the basis for finding CUE. Moreover, additional VA treatment records have also been associated with the claims file. These records still do not provide a link between the Veteran's low back disability and service. Regardless, again, as these records were not available at the time of the July 2009 rating decision, they cannot be the basis for CUE.
In light of the foregoing, the Board concludes that the correct facts, as known at the time, were before VA adjudicators at the time of the July 2009 rating decision with respect to the issue of service connection for a low back condition, and that the statutory and regulatory provisions extant at the time were correctly applied. The Board finds that there was no error which was undebatable and of the sort which, had it not been made would have manifestly changed the outcome at the time it was made. Consequently, the Board finds that the July 2009 rating decision did not contain clear and unmistakable error and, therefore, the appeal with respect to this matter must be denied.
IV. Service Connection for Tinnitus
The Veteran is seeking service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].
Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court determined that tinnitus is an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage.
Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The Veteran asserts that his tinnitus is due to in-service noise exposure while working on an aircraft carrier. Although service treatment records are silent with respect to any complaints pertaining to tinnitus or ringing in the ears, the Veteran did undergo regular hearing testing due to steady noise exposure.
Post-service, the Veteran filed a claim for service connection for tinnitus in May 2009, within seven days of his discharge from service. He underwent a VA examination in August 2009. The examiner reviewed the claims file. The Veteran reported flight desk noise and jet aircraft noise exposure without hearing protection in service. He denied any civilian noise exposure. The examiner observed recurrent bilateral tinnitus with an onset date of 2006. However, the examiner indicated that he could not proffer an opinion on whether the Veteran's tinnitus was due to in-service noise exposure without resorting to mere speculation.
The Court has held that, in general, it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Before the Board can rely on an examiner's conclusion that an opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id at 390. Thus, as the examiner did not fully explain why he was unable to render an opinion without resorting to speculation, the examination report must be found inadequate.
At the Board hearing, the Veteran again testified that he had significant noise exposure in service due to working on aircraft carriers. He also reported that his tinnitus began in service and had continued to the present. To support his contention, he specifically pointed to the fact that he filed a claim for service connection within seven days of his discharge.
Based on the totality of evidence of record, and by resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. Importantly, the record shows that the Veteran was exposed to significant noise during his military service. Moreover, the August 2009 VA examination report shows a current diagnosis of tinnitus.
In turn, the primary question is whether the Veteran's tinnitus began in service. Unfortunately, as noted above, the examiner failed to provide an etiological opinion. However, in statements of record and at the Board hearing, the Veteran reported that his tinnitus began in service, and has continued to the present. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Tinnitus is a disability that is subject to lay observation and, in turn, the Veteran is competent to report current symptoms of tinnitus that began in service. See Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, as the Veteran has been consistent in his assertions, there is no reason to doubt his credibility. Again, the Board finds it significant that the Veteran filed a claim for tinnitus within seven days of his discharge, which clearly supports his assertion of continuing symptomatology since service.
In sum, the evidence documents noise exposure in service and the Veteran has consistently provided competent and credible evidence that he has had continuous symptoms of tinnitus since his discharge from active duty service, and the Board finds no reason to question the veracity of such statements. See Charles, 16 Vet. App. 370; Hayes, 5 Vet. App. at 69-70. These statements, when viewed in relation to the Veteran's significant noise exposure in service, are entitled to significant probative weight, and thus, are sufficient to establish the presence of tinnitus and a likely continuity of symptomatology from service to the present. Cf. 38 C.F.R. 3.303(b); Walker, supra.
Accordingly, based on the analysis above and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.
ORDER
The appeal pertaining to the issue of entitlement to service connection for left ear hearing loss is dismissed.
The July 2009 rating decision denying service connection for a low back condition was not clearly and unmistakably erroneous, and the appeal is denied.
Service connection for tinnitus is granted.
REMAND
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
With respect to his claim for an initial higher rating for adjustment disorder with depressed mood, the Veteran was most recently afforded a VA examination in November 2009, almost six years ago. At the time of the VA examination, the Veteran was still working full time and the examiner indicated that social avoidance may be due to multiple factors including maladaptive coping, depressive symptoms, and pain management ability. The examiner further found no objective evidence of functional impairment occupationally based on depression alone. Further, a Global Assessment of Functioning (GAF) score of 70 was given. In subsequent statements and at the Board hearing, the Veteran indicated that his symptoms had increased in severity in that he reported additional occupational and social impairment due to increasing mood swings and panic attacks. Moreover, a July 2010 private evaluation showed that the Veteran had lost his job due to an inability to focus and mood swings. A GAF of 60 was given. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Thus, in light of the evidence of a possible increase in severity of the Veteran's psychiatric symptoms, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's adjustment disorder with depressed mood. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).
The Veteran is also seeking service connection for sleep apnea. Although service treatment records are silent with respect to any findings of sleep apnea, at the Board hearing, the Veteran testified that he began experiencing symptoms such as snoring during service. He further indicated that his symptoms have continued to the present. The Board again observes that the Veteran is competent to report such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Moreover, he was diagnosed with sleep apnea in February 2010, within a year of his discharge from service.
The Veteran has not been afforded a VA examination with respect to this issue. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Accordingly, in light of the Veteran's competent statements concerning symptoms in service that have continued to the present as well as the diagnosis of sleep apnea shortly after his discharge from service, the Board finds that he should be afforded a VA examination to determine the etiology of his current diagnosed sleep apnea.
At the Board hearing, the Veteran also appeared to assert that his sleep apnea may be associated with in-service asbestos exposure. However, no further information was given concerning such exposure. As such, the AOJ should ask for more information from the Veteran concerning any in-service asbestos exposure with respect to his claim for sleep apnea.
Likewise, the Veteran has also asserted that he began experiencing headaches in service around the same time that he started having problems with ringing in his ears. In the alternative, he has asserted that his headaches are secondary to his service-connected adjustment disorder, to include medications taken for such disorder. The Veteran filed his claim for service connection shortly after his discharge from service in April 2010. The Veteran has also not been afforded a VA examination with respect to this issue. In light of the Veteran's statements, the Board finds that the Veteran should be afforded a VA examination to address the etiology of his headaches. See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Additionally, the Veteran has not been provided with proper VCAA notice regarding the secondary aspect of his claim of entitlement to service connection for headaches. Such should be accomplished on remand.
The Veteran is also seeking service connection for a right ankle disorder, to include as secondary to his service-connected amputation of right 5th digit at PIP joint. Essentially, he has reported that his ankle condition is caused by an impaired gait to due to his toe amputation. The Veteran was afforded a VA examination in May 2011. The examiner diagnosed right ankle strain, but determined that he could not resolve the issue of whether such disorder was caused by or related to amputation of right 5th digit at PIP joint without resorting to mere speculation. He further stated that there was no evidence to support that amputation would impact ankle stability in the current medical literature. As the VA examiner did not clearly explain the basis for his conclusion that an opinion would be speculative besides referencing medical literature without any further analysis, the Board cannot rely on this examination. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).
Moreover, the Veteran testified that he began experiencing ankle problems in service at the same time of the injury to the toe. The examiner did not provide any sort of opinion as to whether the Veteran's ankle disorder could be directly related to the toe injury in service. When determining service connection, all theories of entitlement must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).
The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Given the deficiencies discussed above, the Board finds that the Veteran should be afforded another VA examination with etiological opinion to address his right ankle disorder.
Lastly, the record contains private treatment records identified and submitted by the Veteran and VA treatment records. However, more recent treatment records may be available. In this regard, the Veteran testified that he received treatment from E.M., M.D. for his psychiatric disorder. However, the most recent records associated with the record date from July 2010. Thus, in light of the need to remand for other matters, the Board finds that efforts should be made to obtain any additional private treatment records that have not already been associated with the record, after receipt of any necessary authorization and consent from the Veteran, and then associated with the claims file. Moreover, additional VA treatment records from August 2011 to the present should also be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for migraine headaches as secondary to his service-connected adjustment disorder. The Veteran should also be requested to provide any information concerning alleged asbestos exposure with respect to his claim for sleep apnea.
2. The Veteran should be given an opportunity to identify any outstanding private treatment records relevant to the claims on appeal that have not already been associated with the record, to specifically include any additional clinical records from Dr. E.M. After obtaining any necessary authorization from the Veteran (i.e., a completed and signed VA Form 21-4142) and any additional information deemed necessary, the AOJ should request any additional private treatment records pertaining to the remaining issues on appeal. The AOJ should make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession.
3. Obtain the Veteran's VA treatment records dated from August 2011 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
4. After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to address the severity, including any functional impairment, due to his adjustment disorder with depressed mood. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Examination findings should include a description of the nature and severity of the Veteran's symptomatology, to include the impact on his social and occupational functioning. In addition, the examiner should assign a GAF score reflecting the psychiatric symptoms.
All opinions expressed by the examiner should be accompanied by a complete rationale.
5. After obtaining any outstanding treatment records, the Veteran should be scheduled for an appropriate VA examination to determine the etiology of his sleep apnea. All medically necessary tests should be performed. The record, to include a complete copy of the Remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions.
After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that sleep apnea began in, or is otherwise related, to the Veteran's military service.
A detailed rationale for all opinions expressed should be provided. The examiner should specifically address the lay evidence concerning symptoms in service that have continued to the present as well as the fact that he was diagnosed with sleep apnea in February 2010, within a year after his discharge from service.
6. After obtaining any outstanding records, the Veteran should be scheduled for an appropriate VA examination in order to determine the nature and etiology of his headache disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated tests and studies should be undertaken.
After examining the Veteran and reviewing the record, the examiner should offer an opinion as to the following:
a) Identify the type of headaches from which the Veteran suffers.
b) Whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's headache disorder is related to his military service.
c) If migraine headaches are diagnosed, whether it is at least as likely as not (a 50% or higher degree of probability) that such manifested within one year of his service discharge in April 2009 (i.e., by April 2010)? If so, please describe the manifestations.
d) Whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's headache disorder is proximately due to, or caused by, his service-connected adjustment disorder, to include any medications taken for such disorder.
e) Whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's headache disorder has been aggravated by his service-connected adjustment disorder, to include any medications taken for such disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation.
In offering any opinion, the examiner must consider the full record, to include service treatment records, post service treatment records, and the Veteran's lay statements concerning pertinent symptomatology. The examiner should provide a detailed rationale for any opinion provided.
7. After obtaining any outstanding records, the Veteran should be scheduled for an appropriate VA examination in order to determine the nature and etiology of his right ankle disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated tests and studies should be undertaken.
After examining the Veteran and reviewing the record, the examiner should offer an opinion as to the following:
a) Whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's right ankle disorder is related to his military service, to specifically include the injury to the right toe documented therein.
b) Whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's right ankle disorder is proximately due to, or caused by, his service-connected amputation of right 5th digit at PIP joint, to include any alter gait caused by such disorder.
c) Whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's right ankle disorder has been aggravated by his service-connected amputation of right 5th digit at PIP joint, to include any altered gait caused by such disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation.
In offering any opinion, the examiner must consider the full record, to include service treatment records, post service treatment records, and the Veteran's lay statements concerning pertinent symptomatology. The examiner should provide a detailed rationale for any opinion provided.
8. After completing the above and any development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated. If the issues remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs